The People of the State of New York, Respondent, v. George H. Ogle, Appellant

The People of the State of New York, Respondent, v. George H. Ogle, Appellant. On the trial of an indictment for murder, where it was claimed by the prosecution that the defendant fled after the homicide, held, it was competent to prove the action of the officers in seeking for him to arrest him. Upon such a trial after a witness for the defendant had testified that he (defendant) had been previously arrested on a charge of shooting a man, and honorably acquitted, the defendant was called as a witness in his own behalf, and, on cross-examination, was asked if he had been arrested on the charge referred to by his witness, and an answer was received under objection and exception. Held, no error. Defendant's counsel asked the court to charge, in relation to facts necessary for the corroboration of an accomplice, “that they must be inconsistent with the innocence of the defendant, and which exclude every hypothesis but that of guilt." The court refused so to charge. Held, no error; that the rule only requires a corroboration as to some material fact which goes to prove the prisoner was connected with the crime. The court, after it had left the question of the credibility of witnesses, claimed to be accomplices, to the jury, refused to charge that the jury would be justified in requiring every fact sworn to by said witnesses to be corroborated to its satisfaction, and if not so corroborated, to reject the fact as not proved. Held, no error. (Argued February 3, 1887 ; decided March 1, 1887.) Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made June 28, 1886, which affirmed a judgment of the Court of General Sessions in and for the city and county of Mew York, entered upon a verdict convicting the defendant of the crime of murder in the second degree. The facts, so far as material to the questions discussed, are stated in the opinion. William, F. Howe for appellant. It was error to allow the district attorney to prove by the police officers what they did in seeking the prisoner. (People v. Ryan, 79 N. Y. 601; Coleman v. People, 58 id. 561; Anderson v. Rome, W. & O. R. R. Co., 54 id. 341; Stokes v. People, 53 id. 184; Worrall v. Parmalee, 1 id. 52.) There was error in permitting the district attorney to inquire as to a previous arrest and indictment of the defendant for shooting. (People v. Irving, 95 N Y. 541; 72 id. 571; Real v. People, 42 id. 281; Ryan v. People, 79 id. 600; Crapo v. People, 15 Hun, 272, 290; People v. Brown, 72 N. Y. 571; People v. Gay, 7 id. 378; Jackson v. Osborn, 2 Wend. 555.) The reason questions as to arrest and accusations have been held incompetent proceeds upon the theory that arrests and accusations prove nothing; that the person so arrested or accused is to be presumed innocent. (People v. Irving, 95 N. Y. 541; Ryan v. People, 79 id. 600; Crapo v. People, 15 Hun, 272; People v. Crapo, 76 N. Y. 290; People v. Brown, 72 id. 571; People v. Gay, 7 id. 378; Jackson v. Osborn, 2 Wend. 555; Coleman v. People, 58 N Y. 555; Anderson v. Rome, W. & O. R. R. Co., 54 id. 341; Stokes v. People, 53 id. 184; Worrall v. Parmalee, 1 id. 52.) An accomplice, or an impeached witness, is never legally corroborated by other evidence as to immaterial matters. (People v. Plath, 100 N. Y. 593; Roscoe’s Crim. Ev. 122.) Whenever corroboration is required it must be as to material facts. (People v. Plath, 100 N. Y. 593; People v. Courtney, 28 Hun, 589; People v. Williams, 29 id. 520; Ormsby v. People, 53 N. Y. 474; Kenyon v. People, 26 id. 207; Brice v. People, 55 id. 645; Armstrong v. People, 70 id. 38.) The witnesses, Rogers and Hopper, by their own testimony, are clearly brought within the provisions of section 30 of the Penal Code, defining who are accessories. (People v. Lindsay, 63 N. Y. 153; 1 Russ. on Crimes, 261; People v. Petmecky, 99 N. Y. 415.) McKenzie Semple for respondent. The evidence as to the flight of the accused was admissible. (Ryan v. People, 79 N. Y. 601.) As was also that in regard to his having been arrested for shooting a man in front of Miner’s Theatre. (Nolan v. Brooklyn R. R. Co., 87 N. Y. 63.) The witnesses, Hopper and Rogers, were not accomplices of. the prisoner in the commission of the offense. An accomplice is a person, who, knowingly, voluntarily and with common intent, unites with the principal offender in the commission of a crime. (Whart. Crim. Ev. § 440; Penal Code, §§ 30, 32, 33.) The court having charged that the witnesses were not accomplices, the discussion as to whether he laid down the correct rules as to the evidence requisite to the corroboration of an accomplice, is superfluous. (People v. Ryland, 1 N. Y. Cr. R. 123; People v. Courtney, id. 64; 2 id. 441; People v. Plath, 4 id. 53.) [MAJORITY — Peckham, J.] Peckham, J. Several grounds are stated by the counsel for the prisoner for granting a new trial, but we think that not one is sufficient. It seems, on the contrary, to be quite a plain case for an affirmance of the judgment. But as the prisoner has been convicted of murder in the second degree and sentenced to imprisonment for life, we have not only given full attention to the arguments advanced by his counsel, but in deference to the gravity of the case we will briefly state the reasons for the result arrived at by us. The first alleged error consists in permitting proof of the action of the officers in seeking for the prisoner after the crime was committed. It was offered and received upon the question of the flight of the prisoner. The court decided correctly in admitting the evidence. The crime was committed on the 30th of November, 1882, and a brother of defendant was charged with its commission and both were arrested that night. The prisoner was present at the examination of his brother but was not called as a witness. The brother was subsequently indicted, but was finally discharged on his own recognizance as there was no proof against him, and at that time none against the prisoner. Subsequently, in January, 1884, several persons were arrested and brought down before the district attorney, or some of his officers, and statements were made by some of them which led the authori ties to desire the arrest of the prisoner. The evidence objected to was then permitted to be given by the district attorney showing what the officer did in order to arrest the prisoner; that he went to his house for the purpose of looking for him, but did not find him there, and also to a saloon kept by one Ogle (but not the prisoner, nor was it his home), and did not find him, and also searched the neighborhood or vicinity without success, and also made inquiries, but without finding him until September 6, 1886, when he was arrested in New York, and he then told the officer, as the officer swore, that he had been in Montana, Kansas City and Montgomery, Alabama, and that if the officer had not got him then, he “ was going away to-morrow evening,” and “ I guess you never would have got me.” All this evidence was perfectly proper. The district attorney claimed it proved the prisoner had run away, and from that, among other things, he might ask the jury to infer guilt. If it did not prove flight, no harm was done. All that could be said was the people had tried to prove a fact and failed; but the evidence was so plainly admissible that no argument upon it is required. The next ground taken by counsel for the prisoner to obtain a reversal rests upon the fact that the district attorney, upon the cross-examination of the prisoner, asked him if he had been arrested for shooting a man at Miner’s Theatre. The evidence was admitted under the objection and exception of the prisoner’s counsel. Whatever the ruling of the court might otherwise have been, it is clear no right of the prisoner was illegally invaded under the facts of this case, for his counsel had already proved the same fact in the examination of the father of the prisoner, who testified his son had been arrested and honorably acquitted upon the trial of a charge for shooting a man at Miner’s Theatre, showing conclusively the two examinations referred to the same transaction. The counsel asked the court to charge the jury in relation to the facts necessary for the corroboration of an accomplice “ that they must be inconsistent with the innocence of the defendant and which exclude every hypothesis but that of guilt.” The court refused and counsel excepted. In this the court was clearly right. There is not and never was any such rule as to corroboration. The whole law of evidence will be searched in vain for it. The authorities cited by prisoner’s counsel maintain no such rule. The rule is stated in one of them (People v. Plath, 100 N. Y. 590, 593), and it is wholly different from the request herein made. It only requires a corroboration as to some material fact which goes to prove the prisoner was connected with the crime. Another answer is that the witnesses, in regard to whom the request was made, were not accomplices in any sense of the word. Neither was even charged with any crime whatever. The most that could be alleged was that one of them, after the crime was committed, had the knife placed in his hand, and he threw it under a chair in the ball room, to which he immediately returned after seeing the prisoner plunge it in the deceased. There is no evidence whatever that either had the least thought that the murder was to be committed, or in any way aided or abetted in its commission. Even if the rule as to the evidence of an accomplice had been erroneously stated by the court, it was, therefore, wholly immaterial in this case. The court was also asked to charge the jury that it would be justified in requiring every fact sworn to by the witnesses, Rogers and Hopper, to be corroborated to its satisfaction, and if not so corroborated, to reject such fact as not proved. The court left the question of the credibility of the witnesses under proper instructions to the jury. The charge was an eminently fair one and all the legal rights of the prisoner were therein carefully and fully guarded. The record reveals no error and the judgment should be affirmed. All concur. Judgment affirmed.